INDRAJEET ROY Vs. REPUBLIC OF INDIA

JUDGEMENT

(1.) THIS application under Section 439, read with Section 482 of the Code of Criminal Procedure (in short, the "Cr.P.C.") is a sequel to the judgment dated 15th, September, 1997, passed by Hon'ble Mr. Justice R.K. Dash, in Criminal Misc. Case No. 2803 of 1997. Since the question raised involves a point relating to interpretation of the said judgment, in normal course, the matter should have been placed before the very same Bench. However, as the matter has been moved during vacation and the learned Judge due to unavoidable circumstances is not in a position to take up the matter, the matter has been directed to be placed before me as the Vacation Judge under certain unusual circumstances. Initially, on 4.10.97, the date of presentation of this application, Shri B.K. Nayak, the learned counsel for the petitioner, appeared before me at my residential office as I am in charge of Vacation Court till 10th of October, 1997, for the purpose of finding out about the convenience in the matter of taking up the petition. He also queried whether I would like to take up the case in view of the fact that Shri Govind Das, Senior Advocate, who had been engaged by the petitioner in the earlier disposed of case (CRMC 2803/97) was to conduct the present case also. Though Shri Govind Das is a relation by marriage being the father-in-law of my nephew (sister's son), keeping in view the fact that such relationship does not preclude him to appear before me as the relationship does not come within the categories indicated in Rule-6 of Chapter-II of Part-VI of the Bar Council of India rules framed under the Advocates Act, 1961, and as Shri Das had earlier appeared in some other cases before a Division Bench of which I was a member, and particularly in view of the urgency of the case, I expressed my willingness to take up the matter either on the same date, i.e. 4.10.1997, or on 6.10.1997, when regular sitting of the Vacation Court was scheduled to be held. However, since Shri B.K. Nayak appeared to be hesitant, I told him that if learned Senior Counsel Shri Das was feeling embarrassed to conduct the case before me, appropriate mention may be made before the senior-most Judge available at station. Therefore, as apparent from order dated 4.10.1997, a mention was made before Hon'ble Mr. Justice A. Pasayat. The relevant portion of the said order is extracted below :-

(2.) THE petitioner who is accused of having committed an offence under Section 376 read with Section 511 and Section 354, Indian Penal Code (in short, the "I.P.C.") had filed Criminal Misc. Case No. 2803 of 1997 under Section 438 Cr.P.C. for grant of anticipatory bail in Cantonment P.S. Case No. 67 dated 19.7.1997. Subsequently, as per the direction of the High Court, the investigation of the case was transferred to the Central Bureau of Investigation (in short, the "C.B.I.") and case has been registered as R.C. 7/5/97-Cal. During pendency of the application under Section 438, Cr.P.C., the counsel for Republic of India was heard. Ultimately, by judgment dated 15th September, 1997, Hon'ble Mr. Justice R.K. Dash, passed the following order :

(3.) AT the fag end of hearing of this petition, the learned counsel for the petitioner pointed out that the petitioner has also filed a Criminal Revision challenging the legality of the order passed by the Second Additional Sessions Judge. He has further submitted that a separate application has been filed in the disposed of Criminal Misc. Case No. 2803/97 for extension of the protection given in the judgment passed in the said case. The aforesaid two other matters have not been mentioned to be taken up nor listed and copies of those petitions had not been served on the counsel for the Republic of India.